Citation Nr: 1104271 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 05-12 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back disability, to include as due to exposure to ionizing radiation. 2. Entitlement to service connection for depression, to include as secondary to a back disability. 3. Entitlement to service connection for a bilateral leg disorder, to include as secondary to a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1978 and August 1983 to January 1987. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating action by the Department of Veterans Affairs (hereinafter VA) Regional Office in North Little Rock, Arkansas, (hereinafter RO). The case was remanded by the Board for additional development in February 2007 and February 2009 and is now ready for appellate review of the remaining issues on appeal. Two additional issues previously on appeal, claims for entitlement to service connection for bilateral hearing loss and tinnitus, were granted by a November 2007 rating decision and are thus no longer for consideration by the Board. In January 2006, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). FINDINGS OF FACT 1. There is no competent evidence linking a back disability to service. 2. The Veteran's back disabilities are not associated with a disease that warrants presumptive service connection on the basis of being a disease specific to a radiation-exposed Veteran or a radiogenic disease. 3. There is no competent evidence linking depression or a bilateral leg disorder to service. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by service, to include as a result of exposure to ionizing radiation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.385 (2009). 2. Depression was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 3. A bilateral leg disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was fulfilled in the instant case with respect to the claims for service connection for back and leg disorders by letters dated in September 2003, January 2004, and March 2004 prior to initial adjudication that informed the appellant of the information and evidence necessary to prevail in these claims. The duty to notify was fulfilled with respect to the claim for service connection for depression by a January 2005 letter, also prior to initial adjudication of this issue, that informed the appellant of the information and evidence necessary to prevail in this claim. As for the duty to assist, the service treatment reports from the Veteran's first period of service have been obtained, as have service personnel records and VA and private clinical reports. The Veteran was also afforded a VA examination, with an addendum completed in March 2009, that included an opinion as to whether the Veteran's back disability was a result of service. The Veteran's service treatment reports from his second period of active duty are unavailable. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Legal Criteria/Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran asserts that his active duty with the United States Air Force included exposure to nuclear warheads associated with his duty as a missile maintenance technician. These assertions are corroborated as the service personnel records reflect some active duty service as a missile mechanic. Service connection for a disability based upon exposure to radiation can be awarded on three different legal bases. The first basis is a presumptive basis for diseases specific to radiation exposed Veterans under 38 C.F.R. § 3.309(d). The second basis is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease under 38 C.F.R. § 3.311. Finally, the Veteran is entitled to service connection if he can establish that a disability warrants service connection as defined by the general laws and regulations governing VA compensation entitlement; that is, on a direct or presumptive basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA regulations specify 21 types of cancer that warrant presumptive service connection if they become manifest in a "radiation-exposed Veteran" within specified periods of time. 38 C.F.R. § 3.309(d)(2). Clearly, a back disability is not a condition which warrants service connection on the basis of being a disease specific to a radiation-exposed Veteran under 38 C.F.R. § 3.309(d)(2). As such, the preponderance of the evidence is against a grant of service connection on this basis. 38 C.F.R. § 3.309(d). Service connection can also be pursued under 38 C.F.R. § 3.311 on the basis of exposure to ionizing radiation and the subsequent development of a radiogenic disease. 38 C.F.R. § 3.311. Essentially, any form of cancer is considered a radiogenic disease within the meaning of the applicable regulations. 38 C.F.R. § 3.311(b)(2)(xxiv). However, the Veteran's back disability is not a radiogenic disease and does not meet the criteria specified in the regulation. As such, the preponderance of the evidence is against a claim for service connection for a back disability under 38 C.F.R. § 3.311. Given the fact that the condition claimed to be the result of exposure to radiation is not presumed to be a disease specific to a radiation-exposed Veteran or a radiogenic disease, the RO did not conduct all of the development indicated to determine whether the Veteran was exposed to radiation in service, and further development to determine if the Veteran was exposed to radiation in service is not indicated. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation. See Combee, supra. In written contentions and sworn testimony to the undersigned, the Veteran has asserted that he has a current back disability as a result of a fall from a tank during his second period of active duty in 1985. As indicated, the service treatment reports from this period of service are not of record. What is of record is a July 2004 statement from an individual who reported that he served with the Veteran that corroborated the 1985 fall from the tank reported by the Veteran. Also of record are statements from the Veteran's wife and step daughter attesting to the 1985 tank incident described by the Veteran. Reports from an August 2007 VA examination also reflect the Veteran reporting that he injured his back as a result of a fall injury in 1985. Following a review of the claims files and examination of the Veteran, which resulted in a diagnosis of degenerative joint disease of the lumbar spine, the VA examiner concluded that the Veteran's back disability was less likely as not related to the reported in-service injury. As support for this conclusion, the examiner noted that there was no evidence of an injury to the back in the service treatment reports reviewed and the fact that records from a private chiropractor reflect that the Veteran denied a history of a back injury. The examiner also noted the Veteran's post service work history as a welder and concluded that the x-ray evidence of mild to moderate degenerative joint disease of the lumbar spine was "consistent with [a] 51 year old patient with strenuous physical work after discharge from service." In its February 2009 remand, the Board noted the absence of any service treatment reports from the period during which the Veteran claimed he injured his back and requested an addendum from the examiner who conducted the August 2007 VA examination that would assume the occurrence of the 1985 back injury as claimed by the Veteran and express an opinion as to whether the Veteran's back disability was the result of the reported 1985 injury. Such an addendum was completed in March 2009 by the same VA examiner who conducted the August 2007 VA examination. The examiner noted that the pertinent records were again reviewed, to include the Veteran's report of a motor vehicle accident in April 2005 (the Veteran also testified to the undersigned as to incurring "whiplash" injuries in an April 2005 automobile accident). Following a review of the evidence, the opinion was as follows: Assuming the [V]eteran slipped off the back of a tank in 1985, there is no evidence of [t]rauma or [fracture] noted on spine films. Limus vertebra finding is most lik[e]ly a congenital anom[a]ly. Mild degenerative changes shown on imaging are completely consistent with patient's age of 52 years and his strenuous work history. My opinion of 8-31-07 is unchanged. The Veteran's current back condition is less likely as not (less than 50/50 probability) caused by or a result of his inservice back injury some 24 years ago. Review of the remaining evidence reveals no medical opinion linking the Veteran's back disability to service. As for the assertions of the Veteran and other lay assertions on his behalf that his back disability is a result of the presumed in service injury in 1985, such assertions cannot be used to establish a claim as a layperson is not qualified to render a medical opinion regarding the etiology of disorders and disabilities. Espiritu; cf. Jandreau. Therefore, given the negative evidence represented by the August 2007 and March 2009 VA opinions set forth above and the lack of any competent evidence linking a back disability to service, the claim for service connection for a back disability must be denied. Hickson, supra. As the occurrence of the 1985 in service tank accident was presumed for the purpose of the March 2009 VA medical opinion, the heightened duties required for the adjudication of the Veteran's case in light of the missing service treatment reports from his second period of service have been substantively met. See Cuevas,O'Hare, supra. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims for service connection for a low back disability, the doctrine is not for application. Gilbert, supra. With regard to the claims for service connection for depression and a bilateral leg disorder, it has been asserted, to include in sworn testimony to the undersigned, that service connection is warranted for these condition as secondary to a back disability under 38 C.F.R. § 3.310. As service connection is not warranted for a back disability, the claims for service connection for depression and a bilateral leg disorder as secondary to a back disability must be denied. There is otherwise no evidence of a psychiatric disability or leg disability contained in the service medical reports from the Veteran's first period of active duty, although a September 1976 service treatment report reflects a consultation in the mental hygiene clinic to discuss a "marital situation." In addition, there is no competent medical evidence linking a current disability due to depression or a lower leg disability and service. As such, service connection for depression and a lower leg disability on a "direct" basis must also be denied. Hickson, supra. The Board again considered the doctrine of reasonable doubt in making this determination, but as the preponderance of the evidence is against the Veteran's claims for service connection for depression and a bilateral leg disorder, the doctrine is also not for application with respect to these claims. Gilbert, supra. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for depression is denied. Entitlement to service connection for a bilateral leg disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs